washingtonpost.com
Court Defies Pro-Business Label
Decisions Reveal More Nuanced Portrait

By Robert Barnes
Washington Post Staff Writer
Sunday, March 8, 2009

After the Supreme Court completed its first full term with both of President George W. Bush's appointees in place, business groups and those who represent them could hardly come up with the accolades to describe the new court.

One prominent practitioner said that if former Chief Justice William H. Rehnquist's court had created a good forum for business, the one headed by his protege and successor John G. Roberts Jr. would be even better.

Robin S. Conrad, executive vice president of the legal arm of the U.S. Chamber of Commerce, said the term that ended in June 2007 was "our best Supreme Court term ever," with the business lobby prevailing in 13 of the 15 cases in which it took a position.

But since then, a more nuanced portrait of the court has emerged. And after last week's decision flatly turning down the position of pharmaceutical companies that they were insulated from state lawsuits filed by injured patients, something of a reevaluation of the court is underway.

"I think the early view that the Roberts court was 'pro-business' was premature," said Jonathon Adler, head of the business law center at Case Western Reserve University law school. "People have been too quick to try to characterize this court one way or the other."

Its decisions can often seem contradictory. Last term, it ruled overwhelmingly in Riegel v. Medtronic that makers of medical devices approved by the Food and Drug Administration were protected from state lawsuits. But last week, in Wyeth v. Levine, the majority said the FDA's role in labeling drugs does not protect drug companies from suits alleging they should have done more in warning of dangerous side effects.

To Roy T. Englert Jr., who frequently represents business clients before the court, that is an indication that the court "calls them as they see 'em."

"The court that decided Riegel by an 8 to 1 vote in favor of manufacturers is the same court that voted 6 to 3 in Wyeth against the manufacturers," he said.

Georgetown University law professor David C. Vladeck, who filed a brief supporting Diana Levine, a musician from Vermont who lost an arm to gangrene because of the botched injection of a drug Wyeth produced, agrees with Englert to a point.

"I bet a fair amount of beer that we were going to win the case," he said, though he acknowledges that the two decisions "seem to point in opposite directions."

But medical devices and drugs are regulated under different statutes. In the former, Congress was specific that states may not impose "any requirement" beyond what the federal agency required. But on the labeling of drugs, the "preemption" of state lawsuits was a relatively new position adopted by the Bush administration.

Justice John Paul Stevens wrote that it did not reflect Congress' will and was at odds with decades of FDA practice that recognized the power of lawsuits to ensure the safety of drugs.

Justice Ruth Bader Ginsburg was the lone justice who voted in favor of allowing the injured to sue in both cases. Roberts and Justices Antonin Scalia and Samuel A. Alito Jr. voted for the manufacturers in both cases, and Vladeck parts ways with Englert in saying he thinks those three justices make up a nucleus on the court "particularly sympathetic to the needs of regulated interests."

Those three were also in the minority earlier in the term when the court decided another preemption case in favor of plaintiffs. In a 5 to 4 opinion also written by Stevens, the court said federal regulation of cigarette labeling does not stand in the way of suits under state laws regulating fraudulent marketing practices by tobacco companies.

Those cases do stand in contrast with the court's previous decisions on preemption, and add to a portrait of the court that is building year by year as the justices decide a handful of important business cases each term.

There is no doubt that the court has sided with big business in important ways. The court has made it harder for investors to sue when they suspect securities fraud or unlawful actions. It has protected the lending arms of national banks from state regulation. It overturned a nearly 100-year-old precedent that had made it illegal for manufacturers and retailers to agree on minimum prices.

Last year, it slashed the punitive damages owed by Exxon as a result of the Exxon Valdez oil spill disaster from $2.5 billion to about $500 million. The court expressed doubt about a nearly $80 million award to a smoker's widow and sent it back to the Oregon Supreme Court. That court again said the award was proper, and the Supreme Court is again considering the issue.

"There's no doubt the court is concerned about lawyer-driven litigation," said Conrad of the Chamber of Commerce.

The court drew loud protests in 2007 when it ruled that Lilly Ledbetter, a tire-plant worker from Alabama, was not entitled to the award she won after suing Goodyear for paying her less money than the men she worked with. The court said her suit violated the time limitation set in the federal statute under which she sued.

But since then, the court has consistently sided with employees who have alleged discrimination, and ruled in all five cases it heard last term to allow lawsuits to go forward. It has continued the pattern in cases decided this term.

Liberal groups often express surprise when things go their way. People for the American Way President Kathryn Kolbert this week said the Wyeth decision was "a welcome, and rare, victory for the rights of American patients and consumers," while warning that "the Roberts court has slapped down many other wronged Americans who have faced off against powerful interests."

Conrad, meanwhile, is preparing a law review article on the myth of the pro-business court. She and Adler say that more important to the court than the individual justices' predilections is the importance it places on the role of Congress' expressed intent in the legislation it passes and the support of the federal government. Conrad points out that business does best when it has the support of the solicitor general, although that was not the case in the Wyeth decision.

If so, it will be another factor worth noting, with a new Congress dominated by Democrats and with President Obama appointing a new team of lawyers to represent the government's interest before the court.

Already, Congress has passed changes in the law that effectively nullifies the court's decision in Ledbetter's case. And Democratic leaders last week filed a bill that would do the same to the Riegel decision on medical devices.

View all comments that have been posted about this article.

© 2009 The Washington Post Company